Policymakers More Eager to Restrict Rather Than Protect ComSpeech, New Report Says

Courts' Performance Drops a Full Grade, Adds to Problem

By Richard T. Kaplar

Under siege last year by legislators and regulators in Washington and around the country, commercial speech fared relatively better in the courts. The Supreme Court, however, did less to advance advertising rights in 1997 than in recent years, according to an annual assessment released in March by The Media Institute.

The report gives the Executive Branch a "D" and the Legislative Branch a "D+" for their efforts at protecting commercial speech. The courts, meanwhile, received only a "C." In 1996 the Executive and Legislative branches rated the same "D" and "D+" respectively but the courts earned a solid "B."

The First Amendment and the Media - 1998 examines government actions affecting commercial speech and three other categories of media-related speech: broadcasting and cable TV; on-line issues; and libel law / punitive damages / tort actions. Of the 30 actions outlined in the report, seven deal with commercial speech.

The government’s commercial speech grades closely track the grades it received for overall performance in all four categories: Executive Branch D+, Legislative Branch D+, and Judicial Branch C.

The grading was conducted by The Media Institute’s First Amendment Advisory Council, a group of communications attorneys, scholars, and First Amendment experts chaired by Robert Corn-Revere of Hogan & Hartson in Washington. Council member Daniel E. Troy of Wiley, Rein & Fielding wrote the seven commercial speech chapters.

The Judicial Branch dropped a full grade because the Supreme Court failed to issue a major commercial speech opinion in 1997 and declined to hear an appeal of the Fourth Circuit’s decision upholding the Baltimore billboard bans. Lower courts, however, issued favorable rulings on casino advertising and professional advertising for lawyers and accountants.

Contributing to the dismal grades of the Executive and Legislative branches were a proliferation of local billboard ordinances; the FCC’s interest in regulating distilled spirits commercials; and various initiatives to restrict tobacco advertising advanced by the FDA, state attorneys general, and Congress.

The report notes that the "children's well-being" argument has become firmly entrenched as the rationale favored by legislators and regulators to justify all types of commercial speech restrictions, particularly for tobacco and alcohol products.